LePage Demands Stall Marijuana Law

Yesterday the already tumultuous story of LD 88, "An Act To Delay the Implementation of Certain Portions of the Marijuana Legalization Act" took an increasingly intriguing turn when the bill was enacted by the Legislature but failed to meet Governor LePage's policy demands.

LD 88 was introduced by Rep. Louis Luchini (D-Ellsworth) earlier this month in response to last November's passage of referendum Question 1, which legalized recreational marijuana use. The ballot initiative failed to include language that could ensure minors would not be able to legally purchase or possess marijuana and this necessitated an amendment broadly accepted by the marijuana industry and community.

A more contentious aspect of the bill was to delay implementation of rule-making for three months, which was widely regarded as a heavy-handed delay of the implementation of the entire referendum. This common misconception frustrated stakeholders and many lawmakers during the bill's public hearing and work sessions as marijuana activists lambasted what they considered nefarious intent.

During the Legislature's Joint Standing Committee on Veterans and Legal Affairs' time working the bill Governor LePage made relatively little comment and did not get directly involved in goings-on around the document. That all changed during the middle part of this week, however, when the Blaine House began making noise that the Governor would veto an otherwise smooth ascendency of LD 88 if it did not hand retail licensing authority to the Bureau of Alcoholic Beverages & Lottery Operations rather than house it under the Department of Agriculture, Conservation & Forestry.

The left flank of the House Democratic Caucus was always uncomfortable with any mention of "delay" in relation to Question 1 and so the ground was fertile for knee-jerk disagreement when House Republicans sponsored a floor amendment proposing to make LePage's demanded changes, which also included 1.6 million dollars to better fund rule-making. The amendment was rejected in the House yesterday morning and both bodies of the Legislature moved swiftly to enact the bill in its original form.

There continued to be much uncertainty, though, as Governor LePage's threat to veto LD 88 loomed large over the Legislature. He is capable of holding the bill for ten business days without signing it or allowing it to become law and has been known to wait till the last hour to issue vetoes.

At 4 pm yesterday afternoon legislative leadership met with the Governor to try to avert an impending "crisis." They feared failing to have the bill signed by the Governor before the January 30 implementation of Question 1. The Governor indicated he might not issue a veto, and the media has reported he has refused to sign or veto it but there is broad consensus within the State House that any gubernatorial action during the next ten business days is possible.

Land Use Boards/Subsequent Application Doctrine

Land use boards, especially planning and zoning boards, are often faced with applications to develop property that are similar to prior applications to develop the same property. Since the New Hampshire Supreme Court’s decision in Fisher v. City of Dover, 120 N.H. 187 (1980), the law in New Hampshire has been that a zoning board of adjustment (“ZBA”) should not consider a subsequent application unless a material change of circumstances affecting the merits of the application has occurred or the application is for a use that materially differs in nature and degree from the prior application. The Supreme Court refers to this doctrine as the “subsequent application doctrine” (sometimes referred to as the “finality doctrine”).

Until April 2016, the Supreme Court had not applied the subsequent application doctrine to applications before a planning board. In CBDA Development, LLC v. Town of Thornton, 168 N.H. 715 (2016), the Court held that the Town’s Planning Board had properly decided that it could not consider the plaintiff’s second application because it did not materially differ in nature and degree from its initial application, which had been denied. The Court rejected plaintiff’s argument that the subsequent application doctrine applied only to applications before a ZBA.

The Court in CBDA Development, LLC v. Town of Thornton established or reiterated a number of principles that should be of interest to members of all land use boards, including:

1. That the subsequent application doctrine is alive and well and applies to decisions of all land use boards. In addition to applications before ZBA’s and planning boards, the doctrine would also apply, for example, to applications before a building code board of appeals.
2. The burden of proof is on the applicant to show that the subsequent application involves a material change of circumstances affecting the merits of the application or is for a use that materially differs in nature and degree from the original application.
3. The land use board itself should determine, as a threshold question, whether the subsequent application doctrine applies to preclude consideration of the second application. If it applies, then the board should not proceed to a consideration of the merits of the application. If it does not apply, then the board may proceed to consider the application’s merits. It is within the sound discretion of the land use board to determine whether the second application has been changed sufficiently, or whether the circumstances have changed sufficiently, to warrant hearing the merits of the second application.

Land use boards should be cautious about applying the subsequent application doctrine too zealously. For example, where a subsequent application is changed to address specific concerns that the land use board raised when considering the merits of the first application, the board should hear the merits of the second application. In Brandt Dev. Co. of N.H. v. City of Somersworth, 162 N.H. 553 (2011), the Court held that there had been substantial changes in the law applicable to variances so that the ZBA should have heard the subsequent application.

Note that while this entry addresses New Hampshire law, the Maine Supreme Judicial Court issued a similar ruling in the 1994 case of Silsby v. Allen’s Blueberry Freezer, Inc., 501 A.2d 1290, 1295 (Me. 1985). The guidelines discussed above are generally applicable in both states.

VLA Reports out Marijuana Amendment

The Veterans and Legal Affairs Committee (“VLA”) held a public hearing on Tuesday of this week on LD 88, which lasted for just under four hours with several dozen members of the public testifying. There were more people there to testify against the bill, mainly organized by Paul McCarrier and Legalize Maine.

VLA met yesterday to work LD 88 a second time. They voted unanimously to support amendments and completed language review. The bill will be on the House calendar on Tuesday, so it can get it to the Governor as soon as possible.

The Committee addressed several issues:

1. Definitions: the amendment replaces the initiative definitions with definitions that mirror the criminal definitions. They try to refer to both marijuana and marijuana concentrate together mostly throughout the amendment when possible.
2. Minor issue: the Committee adopted their own provision specifically tied to prohibiting possession and applying tiered penalties. They opted to pass the comprehensive minor provisions on to the joint select committee to address.
3. Non-public definition: the Committee opted to limit to private residence "including curtilage" or "private property, not generally accessible to the public." There was a lot of discussion around use in motor vehicles (while in operation, buses, RVs, etc.), but they settled on focusing the language on consumption in a motor vehicle while the vehicle is in operation. They prohibit use on property used for daycares and in designated smoking areas under the Workplace Smoking Act. They apply fines for violations.
4. Rulemaking: adoption "shall" occur 9 months after the effective date of the MLA. The Department of Agriculture will be allowed to delegate rulemaking to the Department of Administrative and Financial Services and the Bureau of Alcoholic Beverages and Lottery.
5. Amounts: they used the MA language 2.5 oz of marijuana "except that no more than 5 grams may be in the form of marijuana concentrate." They opted to defer the weight issue - distinguishing this weight from the weight of the product (brownies, butter, etc.) - to the joint select committee. 

Municipal Land Use Appeals – Ripe for Confusion?

For the past decade, Maine's Supreme Judicial Court has been struggling to find a way to reduce – and expedite – the number of land use appeals going through the courts. It took the opportunity to make a sweeping new rule in the case of Bryant v. Town of Camden, decided last year. In Bryant, an abutter appealed the decision of the Town of Camden's Zoning Board of Appeals to issue a special exception permit to a local inn that wished to expand. The Town's Zoning Ordinance gave jurisdiction to the Board of Appeals to decide such applications by reviewing certain criteria aimed at evaluating whether the development plan would cause undue burdens on the neighborhood. Since the ZBA issued the decision, it was appealed directly to Superior Court. The Superior Court upheld the ZBA's decision and the abutter appealed to the Law Court.

To the surprise of the parties, the Law Court ended up dismissing the appeal based upon issues that had not been raised by either party. The decision begins:

In an effort to reduce confusion, costs, and delay in municipal appeals, we today announce more clearly the need for finality in municipal decisions before a municipal entity’s action may be appealed to the courts. Specifically, we consider when a municipal agency’s decision constitutes a final action subject to immediate judicial review and when, instead, additional municipal decision making is necessary before an appeal is ripe for consideration by the courts.

The Court went on to find that because the inn would still need site plan approval from the Planning Board and Code Enforcement Officer before it could go through with the planned expansion, the appeal was not ripe for consideration by any court. The inn's owner would essentially have to get all of its permits and approvals before the abutter could appeal the issues from the first decision.

Municipal and land use attorneys across the state have been trying to determine the best way to respond to the Bryant decision. All are concerned about the amount of time and expense that might be spent on proceeding through a review process when the first step has already been challenged. I represented the Town of Camden in Bryant, and have been participating in a working group aimed at finding a legislative or procedural compromise to the concerns raised by the Court. The group has presented a proposed change to Rule 80B (which governs appeals of municipal decisions) to allow the Superior Court to decide whether it is appropriate to proceed with review despite any requirement for additional permits. The group is also working on proposed legislation to at least provide that a decision is final for appeal purposes once it has been before any board with jurisdiction over the development (as opposed to final building and occupancy permits issued by the Code Enforcement Officer or other officials).

Until there is some clarification regarding the reach of the Bryant decision, we are helping our clients implement ways to streamline or consolidate their review process on multi-stage approvals. There are a few simple strategies to do so that will reduce the burden on applicants, abutters and municipal officials alike. Please contact us if you would like more information.

*Please note that this post addresses Maine law only. To the best of our knowledge, no courts in New Hampshire or Massachusetts have applied the ripeness rule in this way.

Legal Marijuana – High on the Legislative Agenda

In the wake of Question 1's passage on last November's referendum ballot in Maine, marijuana legalization must now be implemented via programs overseen by the Legislature and Executive Branch. This has led to a spate of proposed legislation —65 individual bills in total—that now seek to modify forthcoming programs, rein in or loosen legalization, make slight tweaks to the referendum language, or affect any number of other contours within the marijuana debate.

While the conversation in popular culture often remains a base assessment of marijuana's "effects" and if it should or should not be considered a drug, the policy story is a much different one. The vast majority of debate that has and will continue to rage at the Maine State House will center on which proponents of marijuana will see it regulated as they would most like.

This regulatory debate coupled with the sheer number of marijuana related bills has led legislative leadership to tentatively agree on a "joint-select committee" on marijuana. As opposed to the Legislature's regular "joint-standing committees" the joint select will exist only so long as it is intended to by its enactors and will specifically deal with marijuana legislation. They will have the full powers of a legislative committee in that area and will be able to hear, work, and report out bills. Legislative leadership is expected to announce the committee's membership next week. The irony that it is a joint committee is appreciated by one and all.

One of the 65 proposed bills has garnered the lion's share of interest, ire, and media attention thus far. LD 88 would delay the implementation of the Question 1 for one year as language changes were made to the impending statute. LD 88 had its first hearing today at 1 p.m. before the Veterans & Legal Affairs Committee.

Service Animals and the Maine Human Rights Act

Do you have to let that animal in here? The law might just say that you do.

The Maine Human Rights Act (“HRA”) is broad in its reach and is intended to cover municipalities and their properties. In a law that became effective this year, the Legislature created a new definition of “service animal”, thereby distinguishing between the rights of a person with a service animal and those with an assistance animal.

A service animal “is a dog that is individually trained to do work or perform a task” for a person with a disability, which tasks are directly related to the disability. By way of example, a dog that provides navigation assistance to the visually impaired or assists by pulling a wheelchair qualifies as a service animal. Services to a human such as providing emotional support, well-being, comfort or companionship do not qualify as “work or tasks” for purposes of a service animal. The exclusion of these types of support services, however, can apply to animals that may qualify as assistance animals under Maine law. Assistance animals are those animals that either are (a) determined to be necessary to mitigate the effects of a physical or mental disability by certain health professionals or a licensed social worker or (b) individually trained to perform work or tasks for the benefit of an individual with a physical or mental disability. Only dogs can qualify as service animals, a limitation that does not apply to assistance animals, which means that cats, ferrets and other animals may qualify as assistance animals.

Municipal buildings are “places of public accommodation” under the HRA and, therefore, municipalities cannot discriminate against people because of a disability, including that person’s use of a service animal. In addition, the HRA requires that landlords allow tenants with disabilities to have the use of a service animal or an assistance animal.

The right to the benefit of service animals and assistance animals are limited if it can be shown that such an animal poses a direct threat to the health and safety of others. It is interesting to note that the potential adverse effects to a person with an allergy to the animal is not a sufficient reason for excluding such an animal. Rather, accommodations need to be made to allow for both the presence of the service or assistance animal and the person with the allergy.

It is a civil violation to mispresent an animal as a service or assistance animal, with the fine being not more than $1,000 for each occurrence.

So, the next time someone comes into town hall with an ostrich claiming it is a service animal, you really don’t have to let that ostrich in.

Let's Talk Municipal Finance – An Introduction

This is the first in a series of posts discussing financing alternatives available to municipalities and certain other governmental entities, such as school, water, and sewer districts. 

Municipalities and other governmental entities throughout Maine and New Hampshire are primarily dependent on real estate tax revenues to finance their municipal projects, however, at times the cost of a certain project may require a lump sum of capital that exceeds revenues. When such a situation arises, those entities may choose to borrow money, which is then repaid over time from tax or other revenues.

For long-term financing, municipalities and other governmental entities frequently issue bonds, either on their own or through a pooled issuance, such as those with the Maine Municipal Bond Bank, the New Hampshire Municipal Bond Bank or the United States Department of Agriculture. Generally speaking, there are two types of bonds – general obligation bonds and revenue bonds. Although municipalities may issue either type of bond, they most frequently issue general obligation bonds, which are payable from the general tax revenues of the municipality. On the other hand, other governmental entities usually issue revenue bonds, which are payable only from the revenues of the specific issuer. For example, an airport that issues a revenue bond to construct a new runway may only use revenues from the airport’s operations to repay the bond, rather than the general tax revenues of the municipality where it is located.

At times, a municipality or governmental entity may not be able to wait until a long-term bond can be issued or annual tax revenues are collected. In that case, they may turn to bond anticipation notes or tax anticipation notes obtained directly through a bank, each of which serve as interim financing until funds can be raised either through a full bond offering or from tax revenues. In other cases, a municipality or governmental entity may choose to avoid debt financing altogether through the use of a municipal lease purchase agreement for new equipment, which is similar to a lease-to-own agreement.

In our next installment in this series, we will discuss the bond application and issuance process and in later installments, other forms of financing such as anticipation notes and municipal lease purchase agreements.   

Governor Certifies Marijuana Legalization Law

Governor LePage has certified the vote on the legalization of marijuana in Maine, which is now going into effect on January 30, 2017. It will be legal to possess up to 2.5 ounces of marijuana and grow your own six plants. There is no system in place to distribute recreational marijuana. It will be legal to give it away.

A number of municipalities, including our clients in Augusta, Brunswick and Windham, have enacted moratoria against the development of retail businesses and social clubs. This allows Towns to determine whether to ban retail sales and social clubs and to decide whether there are good reasons to treat retail differently from other retail stores and social clubs differently than bars. At least one town, Oakland, has enacted a ban because it believed it did not have the authority to enact a moratorium because it did not have an adequate Comprehensive Plan.

At this point there is no great benefit nor downside to enacting a moratorium. This is because under the law, the Legislature has nine months to establish a system for legal sales and social clubs and will need to correct some of the errors in the law, including a loophole pointed out by Attorney General Janet Mills, which could be read to allow sales of marijuana to people under the age of 21. There will be an intense lobbying effort in the upcoming Legislature by numerous parties, including the established dispensaries, caregivers and other interested parties, to make changes to the law. The Governor has already proposed a one-year moratorium. Many people think the Department of Agriculture is not the best agency to administer the program. How will the medical marijuana law be affected? MMA has already put in a bill to clarify municipal home rule authority to regulate medical marijuana.

This blog will track the process of the legalization bill and other marijuana and municipal related issues through the Legislature on a weekly basis.